Article 370 of the Constitution, which was added as a temporary provision in the Constitution, is in news again after Dr. Jitendra Singh, Minister of State in the PMO, has given a statement that there should be a debate on the desirability of retaining the Article 370. As usual, J & K Chief Minister Omar Abdullah vehemently opposed any such move while saying he would “oppose tooth and nail” if any such move is made by the Modi-led BJP Government.

With the
RSS also joining the issue, the matter has been further intensified.
As the BJP has formed the Government with absolute majority and NDA
has got around 2/3rd
majority in Lok Sabha, there are clear chances that for the very
first time, the issue of abolition of Article 370 will reach to its
logical conclusion. Prime Minister Narendra Modi had already given
the similar statement when he was addressing an election rally in the
State while campaigning for the party.

In
Focus

Abolition
of Article 370 was always on the agenda of RSS and BJP and the party
has not mentioned the same in its election manifesto prominently only
because it was not that sure of an absolute majority for BJP and near
2/3rd
majority for NDA.

Before we
further proceed in this matter, let us see what is written in Article
370 (3) of the Constitution :

“(3)
Notwithstanding anything in the foregoing provisions of this article,
the President may, by public notification, declare that this article
shall cease to be operative or shall be operative only with such
exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the
State referred to in clause (2) shall be necessary before the
President issues such a notification.”

Article
370(3), as we can see clearly says that the President, by public
notification, can declare that this article shall cease to be
operative provided that the recommendation of the Constituent
Assembly of the State has been obtained before President issues such
a notification.

It is very
interesting to note that the Constituent Assembly referred to under
the article has lapsed long time back in 1957 itself and does not
exist any more. This would clearly mean that the President can issue
the notification stating that the temporary provision of Article 370
of the Constitution ceased to be operative without obtaining the
recommendation of the State Constituent Assembly.

There is a
general perception that the Government at the Centre requires 2/3rd
majority in both the houses of the Parliament in order to abolish the
Article 370 as provided in Article 368. However, the provisions of
both Article 368 and Article 370 are independent of each other and
the requirement of 2/3rd
majority under Article 368 is only warranted when the President is
unable to abolish the Article 370 under the provisions of Article 370
(3) itself. If the President can issue a valid notification making
the Article 370 inoperative under the provisions of Article 370 (3),
then the question of applicability of Article 368 which mandates
2/3rd
majority in both the houses of Parliament does not arise at all.

We can
also conclude that there was clearly lack of determination and will
power on the part of the Government at the Centre, which is
responsible that this temporary provision of Article 370, which
should have been abolished decades back, is still appearing in the
Constitution Book. If the Government at the Centre had the will to
abolish the Article 370, it was possible even without the 2/3rd
majority in both the houses of Parliament.

We can
further prove this point by reminding that the Rajiv Gandhi
Government was having required majority in both the houses of
Parliament and it took no steps to abolish the same for reasons best
known to the Congress Party and its Government.

With the
legal provisions very clear in this regard, nothing stops President
from issuing a notification abolishing the Article 370. General
perception being created in the media that 2/3rd
majority is required in both the houses of the Parliament is not
correct.

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